The right to having an opinion, the right to freedom of speech and living in a democracy leads people, and rightly so, to express their opinion freely, unashamedly and vociferously at times too.

Social media has helped the evolution of these rights even more. In democracies the world over, people “love” to lambast the Courts of Justice when according to them a finding of guilt did not lead to the infliction “of the right and just” punishment on the guilty person.

Various jurisdictions have different methods on how courts are to calibrate punishment to ensure a fair and equitable imposition of punishment on all persons found guilty. Social media commentators in broad terms do not reflect the ideals of society but rather only give an inkling as to the various diverging opinions ranging in society on any judgement.

The importance of jurisprudence

In Malta, a Sentencing Policy Advisory Board that falls under the Ministry for Justice exists. Yet albeit whatever advice in principle this Board may from time to time give, our local jurisprudence sets certain considerations on punishment, and the exceptions thereto, one might say, in stone.

Principally, first-time offenders are generally speaking given leaner sentences and real and effective imprisonment is mostly avoided. Yet exceptions do exist. This was evident, and rightly so in the case of The Police Vs Xiaoduo Ye, decided by the Court of Criminal Appealper Justice Edwina Grima decided on the 28th October 2022.

Mr Ye was charged with having on the 15th of December 2021 in St. Julians, reviled, threatened, assaulted, resisted by violence and of having caused bodily harm to police officers PC 547, PC479, PC 1005, PS 922, PC 297, PC 1468, PC 1200, PC 1023 and PC 332. Mr. Ye was also charged with having wilfully disturbed the public peace, failing to wear a face mask and for having failed to comply with legitimate orders imparted to him.

Mr Ye at the time of the incident was a residing guest at the Radisson Blue Resort in St.Julians. It seems that although being asked by hotel staff to wear a mask whilst roaming in the public areas of the hotel due to Covid health restrictions, the appellant was not compliant with these repeated requests thus leading the hotel management to unilaterally terminate any contractual relationship with appellant and demanding that he evacuate from his room and the hotel premises.

Mr. Ye however once again refused to comply with these demands, necessitating hotel management to call for assistance from the police.

From the evidence tendered by the police officers involved in the altercation with Mr. Ye it transpires that he refused even to obey police orders and upon the police confiscating a sword they found in his possession in his hotel room, the appellant became aggressive towards the said police officers thus leading to his arrest.

During the process of his arrest, the police officers alleged that three of them (PC547, PC479 and PC1005) sustained slight injuries at the hand of Mr.Ye.

From the testimony of an independent witness, it transpired that Mr. Ye lunged forward towards the police officers in an aggressive way thus necessitating that he be forcefully restrained.

From the testimony of this witness, it transpires that Mr. Ye had exhibited this strange behaviour throughout his stay at the hotel, remaining immobile in the hotel gym for several hours, refusing to wear a face mask, arguing with hotel staff, and even with the lift itself, and being a nuisance even towards other guests.

“The Court, unfortunately, witnessed this strange behaviour from the part of appellant even throughout the hearing of the appeal proceedings” the judgement read. 

Considerations of punishment

In his appeal, amongst other grievances, Mr. Ye lamented that the punishment inflicted by the Court of Magistrates was excessive, since according to him that court did not take into consideration that he was a first-time offender with a clean criminal record and therefore three-month prison sentence imposed upon him was too onerous in the circumstances.

The Court of Appeal rightly concluded that the punishment inflicted by the Court of magistrates was within the parameters laid out by law and it therefore found no reason to vary the same, considering above all that Mr. Ye’s “intransigent behaviour reflects a person who does not bow down to authority in any way and thinks that he can defy all and sundry adamant to have his way at all costs”.

Consequently, although it was true that Mr. Ye was to be deemed a first-time offender, however the serious nature of the violations of law of which he was found guilty combined with his non-compliant and obstinate attitude leading to bouts of aggression could only be met with severe punishment as rightly inflicted by the Court of Magistrates.

On this basis, the Court of Criminal Appeal rejected the appeal filed by Mr. Ye and confirmed the appellate judgment in its entirety whereby Mr. Ye was condemned and punished to an effective three (3) months imprisonment and to a fine of (€1,000) one thousand Euro.

 Dr Arthur Azzopardi is managing partner,  Azzopardi, Borg and Associates.